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United States v. Holmes

United States District Court, D. New Mexico

October 26, 2017




         THIS MATTER is before me on Defendant Matthew J. Holmes's Motion to Vacate, Set Aside, or Correct Sentence, filed September 26, 2016. [CR Doc. 69; CV Doc. 1]. The United States responded on January 27, 2017. [CR Doc. 77; CV Doc. 8]. Holmes filed a document entitled “Citation of Additional New Authority” on January 30, 2017 [CR Doc. 78; CV Doc. 9] and a reply in support of his motion on March 13, 2017 [CR Doc. 79; CV Doc. 10]. The Honorable M. Christina Armijo, Chief United States District Judge, referred this matter to me for analysis and a recommended disposition. [CV Doc. 2]. Having considered the briefing, relevant portions of the underlying criminal record, and relevant authorities, and being otherwise fully advised in the premises, I recommend that the motion be denied and that case number 16-cv-1067 MCA/SMV be dismissed with prejudice.


         On March 26, 2014, Holmes was charged via indictment with possessing with intent to distribute crack cocaine. [CR Doc. 11]; Presentence Report (“PSR”) at 4. On defense counsel's motion, a “Form 13” presentence report was ordered to determine Holmes's offense level, criminal history, and sentencing range. [CR Doc. 24]. Holmes pleaded guilty to the offense on February 17, 2015, pursuant to a Rule 11(c)(1)(C) plea agreement whereby the parties agreed to a sentencing range of 108-144 months. [CR Doc. 57]. The plea agreement included a waiver of the right to appeal or collaterally attack his conviction and sentence:

[T]he Defendant knowingly waives the right to appeal the Defendant's conviction and any sentence, including any fine, imposed in conformity with this Fed. R. Crim. P. 11(c)(1)(C) plea agreement, as well as any order of restitution entered by the Court. In addition, the Defendant agrees to waive any collateral attack to the Defendant's conviction and any sentence, including any fine, pursuant to 28 U.S.C. §§ 2241 or 2255, or any other extraordinary writ, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

Id. at 6-7. On September 16, 2015, he was sentenced to 130 months' imprisonment. [Doc. 8-2][1] at 16. Holmes did not appeal his sentence. This instant case is his first motion under § 2255.

         Holmes, proceeding pro se, moves for relief pursuant to § 2255. He asserts several claims for ineffective assistance of both his pretrial counsel and sentencing counsel. As to his pretrial counsel, he claims ineffective assistance based on counsel's failure to (1) conduct a pretrial investigation; (2) interview potential witnesses for trial; (3) communicate with Holmes and inform him of the consequences of pleading guilty versus going to trial; and (4) negotiate a more favorable plea agreement. [Doc. 1] at 4. As to his sentencing counsel, he claims ineffective assistance based on counsel's failure to (1) discuss the PSR with Holmes prior to sentencing; (2) challenge his career offender sentencing enhancement; and (3) file a notice of appeal, despite Holmes's request that counsel do so. Id. at 5.

         In response, the government argues that the appellate waiver bars several of Holmes's claims, namely all those pertaining to his sentencing counsel and the claim pertaining to his pretrial counsel's failure to investigate. [Doc. 8] at 4-7. The government moves to enforce the waiver as to these claims, which it contends do not fall under the exception of “ineffective assistance in negotiating or entering [the] plea or waiver.” Id.; [CR Doc. 57] at 7. As to the remaining claims, the government argues that Holmes fails to show that his representation was deficient or that he was prejudiced by any alleged ineffective assistance. [Doc. 8] at 9-10.

         Motions Under § 2255

         A petition under 28 U.S.C. § 2255(a) attacks the legality of a federal prisoner's detention. Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Pursuant to 28 U.S.C. § 2255(a),

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         A litigant who appears pro se is entitled to a liberal construction of his allegations, though courts must apply the same legal standards applicable to filings drafted by attorneys. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1999). However, courts are “not required to fashion [a pro se litigant's] arguments for him where his allegations are merely conclusory in nature and without supporting fact[s].” United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994). “[C]onclusory allegations without supporting factual averments are insufficient to state a claim on which relief can be based.” Hall, 935 F.2d at 1110.

         Legal Standards

         Ineffective Assistance of Counsel

         The test for making a claim of constitutionally ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Under Strickland, a defendant must satisfy a two-part test:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial.

466 U.S. at 687. Both showings must be made to satisfy the Strickland standard. Id. The Court need not address both prongs of the standard if the defendant makes an insufficient showing on one of the prongs. Id. at 697. In applying the two-part Strickland test, a court may address the performance and prejudice components in any order. Boltz v. Mullin, 415 F.3d 1215, 1222 (10th Cir. 2005).

         Under the first prong, a defendant must demonstrate that his counsel's performance was deficient. The appropriate standard for attorney performance is that of reasonably effective assistance; the defendant must demonstrate that counsel's representation, considering all the circumstances, fell below an objective standard of reasonableness based on prevailing professional norms. See Strickland, 466 U.S. at 687-88. For counsel's performance to be constitutionally ineffective, it must have been “completely unreasonable, not merely wrong.” Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir. 1997) (quoting Hatch v. Oklahoma, 58 F.3d 1447, 1459 (10th Cir. 1995)). In evaluating an attorney's performance, the Court must be highly deferential:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.

Strickland, 466 U.S. at 689 (internal quotation marks omitted).

         In applying this test, the Court must give considerable deference to an attorney's strategic decisions and “recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. “Neither hindsight nor success is the measure” of whether counsel was effective, and “effective” is not synonymous with victorious or flawless. Dever v. Kan. State Penitentiary, 36 F.3d 1531, 1537 (10th Cir. 1994). Rather, to be considered ineffective assistance of counsel, “the representation must have been such as to make the trial a mockery, sham, or farce, or resulted in the deprivation of constitutional rights.” Id. (citing Lorraine v. United States, 444 F.2d 1, 2 (10th Cir. 1971)).

         In order to satisfy the second prong of Strickland, a defendant asserting ineffective assistance of counsel must also affirmatively prove prejudice. Strickland, 466 U.S. at 693. “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the [trial] would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.

         Defendants are entitled to effective assistance of counsel during the plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 162-63 (2012). As with other ineffective assistance of counsel claims, the two-pronged Strickland test applies. To establish prejudice in the context of pleas, a defendant must “show that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 58-59 (1985). Moreover, due process requires that a defendant's plea of guilty be “voluntary and knowing.” Boykin v. Alabama, 395 U.S. 238, 243 n.5 (1969). Otherwise, the plea of guilty is void. Id. “[T]he longstanding test for determining the validity of a guilty plea . . . is whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” Tovar Mendoza v. Hatch, 620 F.3d 1261, 1269 (10th Cir. 2010) (quoting Hill, 474 U.S. at 56) (internal quotation marks omitted).

         Waiver of Collateral Attack

         Waivers of § 2255 rights in a plea agreement are “generally enforceable.” United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001). A defendant may not waive the right to bring a § 2255 petition based on an ineffective-assistance-of-counsel claim challenging the validity of the plea or the waiver itself. Id. at 1187. However, collateral attacks falling outside of that category are waivable, so long as the waivers are made expressly in plea agreements. Id. at 1187 & n.4. In evaluating whether a defendant's § 2255 claim is barred by waiver, courts undertake a three-pronged analysis to determine: (1) whether the disputed claim falls within the scope of the waiver; (2) whether the defendant knowingly and voluntarily waived his rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. United States v. Viera, 674 F.3d 1214, 1217 (10th Cir. 2012) (citing United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004)).

         As to the first prong, to determine the scope of waiver, courts “apply principles of contract law and examine the plain language of the plea agreement.” United States v. Pam, 867 F.3d 1191, 1201 (10th Cir. 2017). Courts will “strictly construe” the scope of the waiver, and “any ambiguities in these agreements will be read against the Government and in favor of a defendant's [collateral attack] rights.” Hahn, 359 F.3d at 1325 (quoting United States v. Andis, 333 F.3d 886, 890 (8th Cir. 2003) (en banc)); see also Pam, 867 F.3d at 1201. As to the second prong, the defendant bears the burden of presenting evidence that he did not knowingly and voluntarily enter the plea agreement or understand the waiver of his collateral attack rights. Hahn, 359 F.3d at 1329. Finally, as to the third prong, a miscarriage of justice occurs where (1) the court relied on an impermissible factor such as race; (2) ineffective assistance of counsel in connection with negotiating the waiver renders the waiver invalid; (3) the sentence exceeds the statutory maximum; or (4) the waiver is otherwise unlawful. Id. at 1327. To show that a waiver is “otherwise unlawful, ” the defendant must show that “the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Id. (quoting United States v. Olano, 507 U.S. 725, 732 (1993)).


         Ineffective Assistance of Pretrial Counsel

         Holmes makes several claims for ineffective assistance of counsel regarding his pretrial counsel's performance during the plea-bargaining process. Specifically, he argues that his pretrial counsel failed to (1) “conduct an adequate and independent pretrial investigation, ” (2) “inform him of the relevant circumstances and likely consequences of pleading guilty as opposed to proceeding to trial, ” (3) “interview potential defense witnesses for trial, ” and (4) “[a]ttempt to negotiate a more favorable plea agreement.” [Doc. 1] at 4. I find that Holmes fails to satisfy either prong of the Strickland standard as to any of these claims, each of which I consider more fully below.

         Failure to Investigate[3]and Failure to Interview ...

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